Friday, September 12, 2008

The RIAA and MPAA are back in the groove of influencing the continuing expansion of US copyright law, according to Declan McCullough. They're back on the old theme of getting the taxpayer and law enforcement agencies to pick up the tab for chasing peer to peer copyright infringers. It is so much better for business if the government pays for your lawyers. They are also promoting a bill through the Senate to ratchet up trade sanctions against pirate countries.

A research group at the University of California in Santa Barbara, which took part in Debra Bowen's top-to-bottom review in 2007 of many of the voting systems certified for use in California, published a paper on their findings over the summer. Their public report on the investigation is available here.

They also made a video of some of their findings, now available in two parts on YouTube.

I usually give a wide berth to self-styled cutting edge "investigative journalism" TV programmes but I did tune into BBC3's Mischief: Your Identity for Sale last night, after flicking through the channels and finding nothing remotely of interest anywhere else. It began with reporter Rebecca Wilcox bringing her laptop computer to a couple of security experts and discovering to her embarrassment that it had reams and reams of sextracker cookies. She had apparently never even heard of cookies - of the web tracking variety - before.

Having expected to turn off in disgust within minutes I found myself watching it through to the end. It did irritate badly at times with the compulsory sensationalist expose style. But Ms Wilox's innocent abroad turned innocent determined crusador, in pursuit of some of the big data harvesters, just about carried off a basic introduction to some of the problems associated with the routine mass digital surveillance that goes on in the virtual shadows of our modern world.

Richard Clayton of FIPR and University of Cambridge Computer Laboratory fame, came across particularly well in explaining the kind of tracking that goes on through social networking sites like Facebook. Ms Wilcox unfortunately went out of her way to make the chap from the Information Commissioner's Office look bad. Then she gave Michael Wills, the government minister who has just been put in charge of managing the regulation of data, a free ride; by not following through and asking the hard questions once she had got her shot of the embarrassed minister looking at the credit cards she could take out in his name. I guess that would have been expecting too much given the nature of the programme.

She succeeded in making the guy from Sky look smug and devious as he had the security people keep her away until he could dig up some dirt on the BBC, in a 'speck in my eye, plank in yours' kinda way. The BBC do send junk mail too but not seemingly in the underhand opt-out way that Sky do - Sky even put out a leaflet telling customers they'd have to ring a premium rate phone number to opt out of receiving their junk mail. Tescos got a going over too when someone at their store card call centre gave out the address linked with a card number to help Ms Wilcox who claimed she wanted to find the owner of a set of keys. Tescos promised to revise their procedures and training saying it shouldn't have happened as operators are already told not to give out information in such circumstances. I feel sorry for the woman who gave out the information.

In any case, if you've had trouble getting through to friends blind to the process of data harvesting, personal profiling and selling of personal data there are harder places to start than to get them to watch this light affair on the iPlayer sometime in the next week. Skip the bits in the Information Commissioner's office and the section on the guy whose credit card number found its way onto a child abuse website leading to him getting arrested during operation ore.

Tony Bunyan at Statewatch has recently produced a special report, The Shape of Things to Come on the European Union's ongoing plans for ubiquitous surveillance.

"EU: SPECIAL STATEWATCH REPORT: The Shape of Things to Come by Tony Bunyan. The EU is currently developing a new five year strategy for justice and home affairs and security policy for 2009-2014. The proposals set out by the shadowy "Future Group" set up by the Council of the European Union include a range of highly controversial measures including new technologies of surveillance, enhanced cooperation with the United States and harnessing the "digital tsunami". In the words of the EU Council presidency: "Every object the individual uses, every transaction they make and almost everywhere they go will create a detailed digital record. This will generate a wealth of information for public security organisations, and create huge opportunities for more effective and productive public security efforts." Seven years on from 11 September 2001 and the launch of the "war on terorism" this major new report The Shape of Things to come (60 pages) examines the proposals of the Future Group and their effect on civil liberties. It shows how European governments and EU policy-makers are pursuing unfettered powers to access and gather masses of personal data on the everyday life of everyone – on the grounds that we can all be safe and secure from perceived “threats”. The Statewatch report calls for a “meaningful and wide-ranging debate” before it is “too late” for privacy and civil liberties.The report also contains four Case Studies: 1) the "digital tsunami" and the surveillance state; 2) The "convergence principle"; 3) Privacy and data protection; 4) EU-US area of cooperation. Press release and Eight page Conclusions"

Anita Ramisastry has a nice article on the recent Ibrahim v. Department of Homeland Security case in the the U.S. Court of Appeals for the Ninth Circuit. The court ruled, in a split 2-1 decision, that Stanford University graduate and mother of four, Rahinah Ibrahim, effectively has a right to challenge her inclusion on the no-fly list compiled by the 'Terrorist Screening Center' (a branch of the FBI) in a court of law before a judge and jury.

Chief Judge Alex Kozinski said:

"Just how would an appellate court review the agency's decision to put a particular name on the list? There was no hearing before an administrative law judge; there was no notice-and comment procedure... For all we know, there is no administrative record of any sort for us to review... So if any court is going to review the government's decision to put Ibrahim's name on the No-Fly List, it makes sense that it be a court with the ability to take evidence"

Professor Ramasastry says:

"This ruling is very significant, for this is the first judicial decision granting individuals the right to seek review of their status on the "no fly" list before a judge and jury. This decision will allow individuals to seek additional evidence about their inclusion on the "no fly" list, and it will allow trial courts to serve as independent checks on the work of the TSA...

passengers who have been adversely impacted by the "no fly" list will be able to seek vindication of their rights before an independent tribunal - rather than merely asking the TSA to de-list them. As for Ibrahim, while this was a procedural ruling, it was a very favorable one, and while it has not yet given her her day in court, it has allowed her to go to court to try and clear her name."

Tuesday, September 09, 2008

The Open Rights Group has made their submission to the UK Intellectual Property Office on the proposed EU copyright term extension available on their website. It takes a similar perspective to my own submission in looking at the winners and losers. From the ORG blog:

"Our submission shows that for the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as “much” as €26.79 each year. That’s because most of the gains (89.5%) will go to the top 20% of recording artists. Meanwhile the major labels will be dividing up millions in extra handouts every year.

What’s more, performing artists will make no extra revenue from radio airplay and other income streams arising from so-called “secondary remuneration rights”, and may even make less. The Commission assumes that fees paid by users of recordings, e.g. broadcasters, will remain constant. That means the amount of earnings available to performers will not be any bigger - it will just be sliced more thinly and distributed longer to more rightsholders. Performers will not earn any more over their life time, and are likely to earn less, as money will be transferred from the living to the estates of the dead.

J.K. Rowling has won her case against the prospective publishers of a print version the Harry Potter Lexicon. The NYT has a brief report on the case.

Interestingly the judge, Robert P. Paterson Jr., concluded that the Lexicon was not a derivative work but he found for Ms Rowling on the basis of the substantive similarity of the Lexicon to the Potter novels. So the Harry Potter Lexicon would appear to be so different from the Harry Potter novels that it is not a derivative work but simultaneously so much like the originals that it is substantively similar. The judge says (apologies for the formatting):

"Although it is difficult to quantify how much of the language in the Lexicon isdirectly lifted from the Harry Potter novels and companion books, the Lexicon indeedcontains at least a troubling amount of direct quotation or close paraphrasing ofRowling’s original language. The Lexicon occasionally uses quotation marks to indicateRowling’s language, but more often the original language is copied without quotationmarks, often making it difficult to know which words are Rowling’s and which areVander Ark’s."

And he goes on to list a whole series of direct copying/paraphrasing and concludes:

"Plaintiffs have shown that the Lexicon copies a sufficient quantity of the HarryPotter series14 to support a finding of substantial similarity between the Lexicon andRowling’s novels. The Lexicon draws 450 manuscript pages worth of material primarilyfrom the 4,100-page Harry Potter series.15 Most of the Lexicon’s 2,437 entries containdirect quotations or paraphrases, plot details, or summaries of scenes from one or more ofthe Harry Potter novels. As Defendant admits, “the Lexicon reports thousands offictional facts from the Harry Potter works.” (Def.’s Post-trial Br. at 35). Althoughhundreds pages or thousands of fictional facts may amount to only a fraction of theseven-book series, this quantum of copying is sufficient to support a finding ofsubstantial similarity where the copied expression is entirely the product of the originalauthor’s imagination and creation...

The quantitative extent of the Lexicon’s copying is even more substantial withrespect to Fantastic Beasts and Quidditch Through the Ages. Rowling’s companionbooks are only fifty-nine and fifty-six pages long, respectively. The Lexicon reproducesa substantial portion of their content, with only sporadic omissions, across hundreds ofentries...

The Castle Rock court held that a trivia book whichtested the reader’s knowledge of “facts” from the Seinfeld series copied protectedexpression because “each ‘fact’ tested by [the trivia book] is in reality fictitiousexpression created by Seinfeld’s authors.” Id. It follows that the same qualitativeconclusion should be drawn here, where each “fact” reported by the Lexicon is actuallyexpression invented by Rowling...

Furthermore, the law in this Circuit is clear that “the concept of similarityembraces not only global similarities in structure and sequence, but localized similarity inlanguage.” Twin Peaks, 996 F.2d at 1372...

Plaintiffs have established a prima facie case of infringement...

Given that the Lexicon’s use of plotelements is far from an “elaborate recounting” and does not follow the same plotstructure as the Harry Potter novels, Plaintiffs’ suggestion that these portions of theLexicon are “unauthorized abridgements” is unpersuasive. Second, and moreimportantly, although the Lexicon “contain[s] a substantial amount of material” from theHarry Potter works, the material is not merely “transformed from one medium toanother,”... By condensing, synthesizing, andreorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does notrecast the material in another medium to retell the story of Harry Potter, but instead givesthe copyrighted material another purpose. That purpose is to give the reader a readyunderstanding of individual elements in the elaborate world of Harry Potter that appear involuminous and diverse sources. As a result, the Lexicon no longer “represents [the]original work[s] of authorship.” 17 U.S.C. § 101. Under these circumstances, andbecause the Lexicon does not fall under any example of derivative works listed in thestatute, Plaintiffs have failed to show that the Lexicon is a derivative work...

To the extent that Defendant seeks to provide auseful reference guide to the Harry Potter novels that benefits the public, the use is fair,and its commercial nature only weighs slightly against a finding of fair use...

The Court isnot persuaded, however, that the acts of RDR Books, which do not amount to more thanintentional delays in responding to Plaintiffs’ communications from counsel, constituteacts of bad faith...

The Lexicon’s verbatim copying of such highlyaesthetic expression raises a significant question as to whether it was reasonablynecessary for the purpose of creating a useful and complete reference guide. While theexact quantity of verbatim copying and paraphrasing in the Lexicon is difficult to assess,the instances identified by Plaintiffs amount to a substantial enough taking to tip the thirdfactor against a finding of fair use in view of the expressive value of the language...

The Lexicon is thusunlikely to serve as a market substitute for the Harry Potter series and cause market harm...On the other hand, publication of the Lexicon could harm sales of Rowling’s twocompanion books. Unless they sought to enjoy the companion books for theirentertainment value alone, consumers who purchased the Lexicon would have scantincentive to purchase either of Rowling’s companion books, as the information containedin these short works has been incorporated into the Lexicon almost wholesale...

The fair-use factors, weighed together in light of the purposes of copyright law,fail to support the defense of fair use in this case. The first factor does not completelyweigh in favor of Defendant because although the Lexicon has a transformative purpose,its actual use of the copyrighted works is not consistently transformative. Withoutdrawing a line at the amount of copyrighted material that is reasonably necessary tocreate an A-to-Z reference guide, many portions of the Lexicon take more of thecopyrighted works than is reasonably necessary in relation to the Lexicon’s purpose.Thus, in balancing the first and third factors, the balance is tipped against a finding of fairuse. The creative nature of the copyrighted works and the harm to the market forRowling’s companion books weigh in favor of Plaintiffs...

Ultimately, becausethe Lexicon appropriates too much of Rowling’s creative work for its purposes as areference guide, a permanent injunction must issue to prevent the possible proliferation of67works that do the same25 and thus deplete the incentive for original authors to create newworks...

Since the Lexicon hasnot been published and thus Plaintiffs have suffered no harm beyond the fact ofinfringement, the Court awards Plaintiffs the minimum award under the statute for eachwork with respect to which Plaintiffs have established infringement. Plaintiffs areentitled to statutory damages of $750.00 for each of the seven Harry Potter novels andeach of the two companion books, for a total of $6,750.00...

For the foregoing reasons, Plaintiffs have established copyright infringement ofthe Harry Potter series, Fantastic Beasts & Where to Find Them, and Quidditch Throughthe Ages by J.K. Rowling. Defendant has failed to establish its affirmative defense of fair use. Defendant's publication of the Lexicon (Doc. No. 22) is hereby permanently enjoined, and plaintiffs are awarded statutory damages of $6,750.00"

In addition, in laying out the facts of the case the Judge paints Roger Rapoport, the president of Defendant RDR Books, rather than Steven Vander Ark, the originator of the HP Lexicon, as the main driving force behind publishing and marketing a print version of the guide. Apparently Vander Ark had specific concerns in early meetings with Rapoport that a print version of the lexicon might infringe Rowling's copyrights.

One final point to note for now is that the judge seemed to place a lot of emphasis on Ms Rowling's testimony in court, in finding the publication of Vander Ark's lexicon would do her irreparable injury.

"Regardless, even if irreparable injury is not presumed, Plaintiffs have presentedsufficient evidence that such injury would result from Defendant’s infringement in theabsence of relief. First, Plaintiffs have established that publication of the Lexicon willcause irreparable injury to Rowling as a writer. Rowling testified that if the Lexicon ispublished, it would destroy her “will or heart to continue with [writing her own]encyclopedia.” (Tr. (Rowling) at 54:9-12.) She further testified that if the Lexicon ispublished—giving “carte blanche to . . . anyone who wants to make a quick bit ofmoney” by drawing freely from her works and opening the doors to “a surfeit ofsubstandard so-called lexicons and guides”—she would have much less incentive to writeher own book. (Tr. (Rowling) at 54:4-12.) By deterring Rowling from writing herplanned encyclopedia, publication of the Lexicon would also result in harm to thecharitable organizations that would receive the royalties from the sale of the book and thereading public who would be unable to enjoy such a book. (Tr. (Rowling) at 55:1-5.)"

Update: The NYT and other places now have longer pieces on the case. Mike Madison's perspective in particular is worth reading in full. As is Groklaw's.